R v Burgess, 2021 ABQB 798

Court of Queen’s Bench of Alberta Citation: R v Burgess, 2021 ABQB 798 Date: 20211006 Docket: 191618313Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Samuel Burgess Accused Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify the victims must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Oral Judgment of the Honourable Madam Justice N. Dilts _______________________________________________________ This is a written version of the oral decision delivered October 6, 2021.

I have edited this written version to add citations and headings, to ensure proper punctuation, spelling and use of language. I have not supplemented my oral reasons. This written decision is near verbatim from the oral decision delivered. My oral decision remains the official ruling of the Court. Introduction

[ 1 ] Samuel Burgess is charged with four counts of sexual assault involving three complainants: HS, BS, and SM. He applies for an order severing the counts in the Indictment and directing that separate trials be held with respect to each complainant. Legal Framework [ 2 ] An accused may bring a severance application under s ection 591(3) of the Criminal Code .

When he does so, he bears the onus of proving on a balance of probabilities that severance should be ordered: R v RC , 2020 ONCA 159 at para 32 . [ 3 ] In R v Last , 2009 SCC 45 at para 16 the Supreme Court of Canada confirmed that the ultimate question faced by a judge on a severance application is whether severance is required in “the interests of justice.” The interests of justice encompass the accused’s right to be tried on proper and admissible evidence, as well as society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner. [ 4 ] A severance application requires the court to undertake a balancing exercise, weighing factors relating to the risk of prejudice to the accused against the public’s interest in maintaining an efficient and cost effective criminal justice system.

Courts have identified a non-exhaustive list of factors that can be weighed as part of this balancing exercise.

That non-exhaustive list of factors includes the legal and factual nexus between the counts, whether the accused intends to mount similar defences in answer to the charges, the general prejudice to the accused, the accused’s intention to testify or not testify, the complexity of the evidence, the likelihood of similar fact evidence being admitted at trial, the possibility of inconsistent verdicts, the desire to avoid multiplicity of proceedings, and other logistics relating to trial, including delay: Last at para 18 . [ 5 ] It is clear from the case law that no one factor gives way to another.

For example, even where there is an objectively justifiable basis to accept that an accused intends to testify in his defence on one count but not others, that does not in itself tip the balance in favour of severance: Last at para 27 . Rather, the “interests of justice” test requires that all relevant factors be weighed to determine whether severance is warranted. [ 6 ] On a severance application, the court is required to consider how the trial might unfold. It does so having been given an envelope of facts and counsels’ intentions with respect to trial strategy.

For example, in weighing an accused’s stated intention to testify, the judge must be satisfied that there is an objective rationale for testifying on some counts and not others, understanding that the accused remains free to control his defence as the case unfolds: Last at para 26 . In weighing the possibility of success of a Crown application to admit similar fact evidence, the judge must be satisfied that it has sufficient merit: RC at paras 37-39.

The court on a severance application does not decide evidentiary issues or pre - judge strategy, but assesses and weighs the reasonableness and likelihood of certain outcomes considering the risk of prejudice to the accused and trial efficiency. Facts [ 7 ] To decide whether severance of the counts against Mr. Burgess is in the interests of justice, it is necessary to understand the allegations against Mr. Burgess, his anticipated defences, and the expected evidence. [ 8 ] The Crown alleges that the complainants HS and BS were good friends and that BS, HS, Mr.

Burgess and another male friend frequently hung out together over a period of about four months in 2018-2019. [ 9 ] With respect to the allegations relating to HS represented in counts 1 and 3 of the Indictment, the Crown says that on October 10-11, 2018, Mr. Burgess sexually assaulted HS first by fondling her without her consent and later that same evening by having intercourse with her on the couch and the floor in the living room of BS’s home, all without HS’s consent. HS was 13 years old at the time. Mr.

Burgess denies the alleged assaults. [ 10 ] With respect to the allegations relating to BS represented in count 4 of the Indictment, the alleged assaults arise in the context of the same friend group of BS, HS, Mr. Burgess and another male. The Crown alleges that between September 3, 2018 and June 28, 2019, when BS and Mr. Burgess were alone in a parking lot outside of his vehicle, Mr. Burgess kissed BS without her consent and despite her efforts to resist. BS was 13 years old at the time. In addition to this alleged assault, BS alleges that Mr. Burgess attempted to kiss her without her consent 25 to 30 times.

Mr. Burgess denies kissing BS as alleged and says BS has a motive to make her complaint. [ 11 ] Mr. Burgess has not yet determined whether he will testify with respect to the allegations of HS and BS and intends to make that determination following the close of the Crown’s case. [ 12 ] SM is an acquaintance of HS and BS from school but is not otherwise a friend. With respect to the allegations relating to SM represented in count 2 of the Indictment, the Crown says that Mr. Burgess and SM met online through a 16-year-old mutual friend. SM sent Mr.

Burgess naked photographs of herself and they agreed to meet in person to have sex. They met twice between September 3, 2018 and June 28, 2019 and on both occasions allegedly had consensual sex in the back of Mr. Burgess’ truck. SM was 12 years old at the time. Mr. Burgess admits to having consensual sex with SM but says he believed SM was 16 years old. Mr. Burgess intends to testify in defence to the charge relating to SM. [ 13 ] Mr. Burgess was arrested on all counts and provided a statement to the police. The admissibility of that statement will be determined in a voir dire .

Defence proposes that the counts be severed following the voir dire to capture some trial efficiencies otherwise lost if severance is ordered. [ 14 ] This Application was argued based on counsel’s advice that Mr. Burgess elects to be tried by judge and jury on all counts.

Position of the Parties [ 15 ] Mr. Burgess maintains that he faces serious risk of moral prejudice (that he has a propensity to sexually assault young girls with whom he is acquainted) and reasoning prejudice (that similarities will be over-valued and differences will be over-looked to conclude that if he assaulted one complainant he is more likely to have assaulted the others) if all four counts are tried together.

Particularly, he expresses concern that a jury might engage in impermissible reasoning influenced by the allegation of repeated assaults against BS and the very serious nature of the assaults alleged by HS. He says that when all of the factors are weighed together, they weigh in favour of severing the counts. [ 16 ] To support his position, Mr. Burgess says there is not a sufficient factual nexus between the four counts to support an application for similar fact evidence or to justify trying the counts together.

He points to the following factors as demonstrating a lack of connection between the counts and the complainants. First, SM has only a tenuous connection to BS and HS. SM is an acquaintance of BS and HS through school with no relevant evidence on the counts respecting BS or HS. Neither BS nor HS have any relevant evidence regarding the count respecting SM. [ 17 ] Second, none of the counts are connected other than by a broadly cast time frame in the Indictment. Third, there is no cross over in the anticipated evidence on the various charges.

While HS and BS are friends and BS is likely to testify regarding the circumstances leading up to the alleged assault on HS, neither HS nor BS were present during the alleged assault on the other and neither have evidence to contribute to the question of whether the alleged assaults in fact occurred. [ 18 ] Fourth, while Mr. Burgess is charged with the same or similar offences respecting all three complainants, there is no other legal nexus between the counts. Mr. Burgess has a unique defence to the allegations regarding SM; and while Mr.

Burgess raises the same defence to the allegations regarding HS and BS, the alleged assaults are very different and allegedly occurred in very different circumstances. Finally, given the distinct defence to the allegations regarding SM, Mr. Burges intends to testify with respect to SM, but he reserves his election with respect to HS and BS. [ 19 ] The Crown maintains that there is a sufficient factual and legal nexus between all four counts such that the counts should be tried together.

The Crown points particularly to the ages of the complainants, the fact that all of the offences are alleged to have happened during the 2018/2019 school year, and that some of the offences involved the use by Mr. Burgess of his vehicle, which the Crown says may be evidence of control. The Crown’s argument is that the evidence demonstrates that Mr. Burgess had a pattern of acting. [ 20 ] With respect to Mr.

Burgess’ stated intention to testify regarding the SM allegations only, the Crown argues that in these circumstances, the accused’s position that he may not testify regarding the HS and BS allegations is not objectively justifiable and should be given no weight. The Crown reminds the court that the evidence at the preliminary inquiry was sufficient to support committal on each count, meaning that there is some evidence on which a properly instructed jury could convict. The Crown argues that Mr. Burgess would reasonably be expected to testify on all counts to respond to the evidence of the complainants HS and BS.

Decision [ 21 ] For the reasons that follow, after weighing all the factors applicable to this case, I am satisfied that severance of the counts is warranted. I reach that decision having concluded that there is insufficient legal or factual nexus between the alleged offences and a significant risk of prejudice to the accused should the four counts be tried together. [ 22 ] Legal nexus is established by looking at, among other things, the offences charged, the defences raised, the time frame in the Indictment, and the expected evidence at trial.

When we talk about a factual nexus, we refer to a connection or link in events, circumstances or conduct. When assessing the strength of legal or factual connection between counts, courts have cautioned against focusing too greatly on similarities and, as a result, masking material differences. That caution makes good sense as it guards against decisions being made on generalities and assumptions rather than on evidence and reason. [ 23 ] Considering first the count respecting SM, there is no legal nexus between the charges relating to HS and BS and that relating to SM beyond the nature of the charge itself.

Regarding SM, Mr. Burgess does not deny the sexual encounters with SM. His defence is that the sexual encounters were consensual and that he believed SM to be 16 years old. In contrast, he denies the allegations relating to HS and BS, and age is not raised as a defence.

In addition, none of the anticipated evidence of one complainant is relevant to the charge of sexual assault involving the other. [ 24 ] Considering the strength of factual connection between SM and the counts relating to HS and BS, there are material differences in how the relationship between SM and the accused allegedly developed, the length of the relationship, the alleged consensual nature of the sexual encounters, and the fact that the encounters were planned rather than opportunistic.

Regarding SM, I am satisfied that there is no factual or legal nexus between the count regarding SM and those regarding HS and BS that would weigh in favour of trying the counts together. [ 25 ] With respect to the counts relating to HS and BS, there is a stronger legal and factual nexus between the three counts and relating to these two complainants. The charges are similar. The offences are alleged to have occurred in the same time frame, the complainants were part of the same friend group with the accused, and both complainants are 13 years old.

In addition, the accused’s defence to the counts regarding HS and BS is the same: a straight denial that the alleged assaults occurred. [ 26 ] However, while this factual and legal nexus between HS and BS is more evident, it is also superficial.

In my view, the Crown relies on generic similarities shared by the complainants (their age and gender) and tenuous connections regarding the offences (the broad “between dates” in the Indictment, and the fact that the accused was alone with each complainant when the alleged assaults occurred) to support its position that there is a factual nexus between counts and that a similar fact evidence application has sufficient

merit. Those similarities mask material differences. [ 27 ] The circumstances of the alleged offences involving HS and BS are very distinct: BS alleges repeated assaults whereas HS alleges that the assaults occurred over one evening.

Moreover, the assaults of BS and HS were separate incidents not connected by place or time, and the alleged physical assaults are by their nature very distinct. [ 28 ] Courts have recognized that there is a natural human tendency to judge a person based on his character and that jurors will have a strong inclination to conclude that an accused who has engaged in similar conduct is more likely to have committed the offence with which he is charged. As a result, similar fact evidence is only admissible where its probative value outweighs its prejudicial effect.

On a severance application, the question to be answered is whether similar fact evidence is possibly admissible. It is a qualitative assessment of whether there is the necessary degree of connection to raise the requested inference: R v JM , 2010 ONCA 117 at 91. This is described as a “considerably lower” threshold than the test to admit similar fact evidence, but it is a threshold nonetheless: RC at para 39.

In my view, despite this low threshold, the differences in the allegations regarding SM, BS and HS and their lack of connection leads me to conclude that the Crown would not have a viable similar fact application at trial. [ 29 ] Moreover, the same factors that demonstrate connection also contribute significantly to an assessment of the risk of prejudice to the accused. Regarding HS and BS, Mr. Burgess is accused of sexually assaulting two young girls with whom he was friends in the same broad time frame.

In my view, these circumstances create an even greater risk that a jury would engage in impermissible reasoning and conclude that Mr. Burgess had a propensity to sexually assault young girls with whom he is acquainted. As stated in R v Percy , 2020 NSCA 11 at paras 40-41 , similar fact evidence is presumptively inadmissible not because it is irrelevant, but because it can be misused as evidence of bad character. Bad character evidence causes two kinds of prejudice.

It causes moral prejudice by colouring the character of the accused in the eyes of the jury and creating the risk that the jury will find an accused guilty not because the Crown has proved his guilt beyond a reasonable doubt but because of his disposition or because they conclude he is deserving of punishment. And it causes reasoning prejudice by taking the jury’s focus away from the offence charged and directing it toward other alleged bad conduct: R v Hart , 2014 SCC 52 at para 74 .

In my view, this risk of prejudice from the misuse of the evidence outweighs any potential gains to the administration of justice from proceeding with one trial. Considering the risk of prejudice to Mr. Burgess if the counts are tried together, severance is clear, appropriate and necessary. [ 30 ] There are two additional factors that I considered in reaching my decision on this application: Mr. Burgess’ provisional intention to testify on the charge relating to SM, and the cost to the administration of justice of ordering three trials. I will discuss those briefly. [ 31 ] Regarding Mr.

Burgess’ provisional intention to testify on the charge relating to SM, to be weighed as a factor in favour of severance, an accused’s intention to testify or not testify must be objectively justifiable: Last at para 26 . I accept that Mr. Burgess’ intention to testify on the count relating to SM is objectively justifiable as the Crown will seek to prove that he did not take all reasonable steps to ascertain SM’s age. I also accept defence counsel’s advice that the decision whether the accused will testify regarding the complaints of HS and BS will be assessed at the close of Crown’s case.

However, given the nature of HS and BS’s allegations against Mr. Burgess, in my view there is a reasonable expectation that he will need to testify to support his denial. For that reason, I place no weight on Mr. Burgess’ provisional decision to testify regarding SM and to hold his decision whether to testify regarding BS and HS till the close of the Crown’s case. [ 32 ] Regarding the cost of three trials to the administration of justice, I recognize the strain a decision to sever places on the criminal justice system.

Like the Crown and defence counsel, I am mindful that there is an ever present conversation regarding the scarce resources throughout the justice system, including police services, prosecutorial services, court services, legal aid and judicial resources. As a result, everyone engaged in the system has a responsibility to limit proceedings where possible to ensure that the demand on the system is reasonable and necessary. The Crown fairly concedes that a single voir dire as proposed by defence will mitigate against some of the loss of efficiency that will follow from a severance order. I share that view.

Delaying severance until after the voir dire will eliminate the need for multiple voir dire on the admissibility of Mr. Burgess’ statement to the police and may limit the need for the investigating officer to attend three trials. Preserving that efficiency is valuable and is a factor I considered when weighing the impact of severance on the administration of justice. Conclusion [ 33 ] For all of the reasons expressed, I am satisfied that Mr. Burgess has established on a balance of probabilities that the interests of justice weigh in favour of severing the counts by complainant.

I grant an order severing the counts by complainant such that a separate trial is ordered for count 2, and for count 4, leaving counts 1 and 3 to be tried together. Under s. 591(4.1) of the Criminal Code , severance will take effect following the voir dire into the admissibility of the statement made by Mr. Burgess to the police. Heard on the 9 th day of September, 2021. Dated at the City of Calgary, Alberta this 6 th day of October, 2021. N. Dilts J.C.Q.B.A.

Appearances: P. Grabinski for the Crown T.E. Foster, QC for the Accused